Bonus: Carson v Makin

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Dahlia Lithwick: This Ad free podcast is part of your slate plus membership.

Speaker 2: So you’re discriminating among religions based on their belief, right?

Dahlia Lithwick: These schools are overtly discriminatory. They’re proudly discriminatory.

Speaker 2: And when you say a public education, all you mean is a secular education. That’s what you mean.

Dahlia Lithwick: Hello Slate. Plus listeners and welcome to a special bonus episode that is just for you. I’m Dahlia Lithwick. I cover the courts and the law for Slate, and I’m aided and abetted by the fabulous fellow Supreme Court Opinion Page. Refresher, refresh, refresh. Refresher. Mark Joseph Stern We are bringing you this midweek extra episode of Amicus to talk about a really significant case that came down today on Tuesday that might otherwise get swallowed up by whatever it is that’s going to come on Thursday.

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Dahlia Lithwick: So, Carson V Macon, we’ve talked about it a lot on the show. This is a big 6 to 3 blockbuster holding that the Constitution requires the state of Maine. The state of Maine must give taxpayer money to private religious schools. And this would have been, I think, one of the most important cases of the term in a normal term. Did we not also have guns and abortion and the EPA on the docket to come? So it warrants, I think, a deep dive because it fundamentally changes the calculus of free exercise, establishment clause jurisprudence in ways that are not necessarily visible to the naked eye. But Mark is going to explain it to your naked eyes. So, Mark, welcome.

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Speaker 2: Happy to be here with my naked eyes covered up for modesty only by my glasses.

Dahlia Lithwick: Mark, can you talk a little bit, I think before we dive into the facts of Carson, which tend to look really specific to the weirdness of how Maine finances public education. So before we talk about the weirdness, can we pan way, way, way, way back and sort of give us a lay of the land of what if this were a normal establishment clause case that had been brought at any other time, or if this were a normal religious liberty case that were brought at any other time, say, 30 years ago, what the legal landscape would have been just so that we can get to a place where you can explain how much it has gone topsy turvy.

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Speaker 2: Yeah. So it was only 20 years ago that the Supreme Court held that states were even allowed to create voucher programs. And when I say voucher, I mean this broadly. Sometimes they take the form of tax credits or scholarships by the state, whatever. That states could have these programs funding religious educational institutions.

Speaker 2: So for many years in this country, there was a big debate. Can we allow states like Ohio in that case and many others to create programs that are sending kids to religious schools to get their primary education? Or does that violate the First Amendment’s establishment clause, which, of course, separates church from state? And in 2002, for the first time, the court narrowly said that it was okay for states to do that and said it does not violate the establishment clause, for states to provide this kind of indirect funding to religious schools by giving the money to students, to families. And that was a very controversial decision.

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Speaker 2: The liberals dissented. A lot of observers were upset and viewed it as a blow to the separation of church and state, because for the first time ever, the court had allowed the public fisc to be opened up to these religious schools that were going to use it for at least partially religious purposes. No. One, at the time, no one was seriously arguing to the Supreme Court that these states were all obligated to provide public funding to private religious schools. Quite the opposite. That was like not even on the table. That would have been laughed out of court if someone had come in and said, you know what? It is actually unconstitutional for Ohio to be excluding religious schools from this program, because that was not the question remotely. It was the question of whether it could not, whether it had to.

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Speaker 2: But if you fast forward now to today, that is exactly what the Supreme Court just ruled, that states that have these programs with vouchers or tax credits or scholarships are obligated to extend them to private religious schools, even if the schools are explicit about using that money to indoctrinate students with a specific religious belief. So we have gone from the Supreme Court narrowly permitting funding of religious education to mandating the funding of religious education in a majority of states that do have these programs.

Dahlia Lithwick: And maybe it’s just worth pointing out that the inflection point in some sense was this case, Trinity Lutheran, that had to do with the rubber resurfacing materials that went on to. Playgrounds, so little kids didn’t skin their knees. That was at that time John Roberts project was to say, really, this is just really limited to, you know, a state program that provides that playground material. It’s totally not going to go further than this. We’ve had justices on the left who really participated in the idea that this stops at the playground. What is it that John Roberts does in Carson that is different even from what was done in Trinity Lutheran.

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Speaker 2: So it’s like a three step program for John Roberts to rewrite the Constitution. So number one, Trinity Lutheran 2017, he says, look, the state of Missouri is excluding this religious day care center from this benefit, this recycled tire that’s going to go on the playground, and that violates against its status as a religious school and denying a public benefit to a religious institution just because of its status, that is a violation of its free exercise rights. And that draws two liberal votes. Breyer and Kagan joined Trinity Lutheran is a72 decision that includes a now notorious footnote that says this isn’t really about the broader issue of church and state. This is just some scraped knees on a playground, nothing more.

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Speaker 2: Three years later, the court issues Espinosa de Montana, another John Roberts special. And this time the court goes a little bit further because, well, actually a lot further, because Montana has this program that provides tax credits to students who go to private schools. Montana doesn’t want to extend those credits to religious schools. And John Roberts says, oh, actually, you have to provide those tax credits to religious schools because you are discriminating against these schools on the basis of their religious status.

Speaker 2: And this time he loses Breyer and Kagan. It’s a54 decision, but he still claims that he is drawing a line between separation of church and state because he says this isn’t about the money going to religious use. This money is just going to the school to educate kids. And the schools are facing discrimination simply because they identify as Christian, not about religious use at all. We’re not talking about subsidizing religious exercise. That’s a totally different thing that this case has nothing to do with two years later.

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Speaker 2: Fast forward to right now Carson v Bacon. And guess what? This is about religious use. This is about a program in Maine that essentially it sends children in very sparsely populated areas to private schools because there are no public schools in much of Maine. It’s very large, actually, but sparsely populated state. Maine can’t afford to build and run public schools everywhere in the state. So it gives money for kids to go to private schools that are supposed to step into the shoes of public schools and provide a secular curriculum. And that is the main requirement here, that these schools act like public schools and provide a curriculum that is not shot through with religion. Because, of course, in Maine public schools, there’s a bar against religious indoctrination. And Maine, once these schools to be similar.

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Speaker 2: And John Roberts writes an opinion that says, oh, well, okay, fair enough. This money, if it goes to religious schools, will be used for religious purposes. And the schools in this case want to use the money to indoctrinate students with all kinds of evangelical religious beliefs. And it has nothing to do with status. In fact, if you are a Christian school that has a secular curriculum, you could participate in this program. It’s not about religious status, it’s only about religious use.

Speaker 2: And John Roberts says, but all that stuff I said about distinguishing between a religious status and use that was fake. It’s not true. It’s not real. And I never meant it. And I am now overturning all of it and rewriting the First Amendment to say that Maine has an constitutional obligation to provide taxpayer dollars to religious schools that engage in explicitly religious education and indoctrinate students with one particular faith.

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Speaker 2: And so that kind of gives the overview of how far we have come from 2000 to where the Supreme Court just barely said that it was okay to give vouchers for religious schools to 2022, where the Supreme Court says, oh, guess what mean, you have to send a ton of money to these indoctrination academies because refusing their ability to participate in the program violates their free exercise rights.

Dahlia Lithwick: And Mark, just to answer this question of how much of Carson turns on the oddity of this funding scheme in Maine, which, as you note, is really singular, how does this ripple out into other states that don’t have a similar system of financing education?

Speaker 2: I mean, I think the answer is to. Be determined. Because if the story I just told tells us nothing else, it reveals that John Roberts is always thinking ahead and that these cases were never just about one individual program in one individual states. Right. These cases were about the much broader principle that the government does not have a particularly strong interest in maintaining secular public education.

Speaker 2: And so the question now, I think, is not just what happens in Maine. These are 5000 students who go to these schools. It’s not going to be that much of an earthquake in the States. But the question is, can states still mandate that charter schools provide exclusively secular curricula? Can states still refuse to provide money to private schools in the first place? This is what I think everyone is worried about in the education space right now, because there’s language in Roberts opinion that suggests that states don’t have to provide money to private schools at all. If they just don’t give any money to the private schools, then they can keep the money out of religious schools.

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Speaker 2: But there’s also language that kind of contradicts that, that says that there is no historical basis for states to mandate that education remains secular. And if you think I’m overstating it, Justice Breyer actually says in his dissent, does this mean that states are going to have to start cutting checks to religious parents who want to bail out their children from the public school system to send them to private school? And I think that would probably be too far for John Roberts, but I don’t know if it’s too far for the other five conservative justices who joined him.

Speaker 2: And I also think that if you take a step back and look at the broader implications here, the court is really condemning the idea that the states have an interest in secular public education in the first place. And that raises a whole host of questions about prayer in public school, about religious indoctrination in public school, about other government funds that go to religious education, and whether the states are all obligated to at least provide some taxpayer dollars to this kind of religious indoctrination that Maine was seeking to avoid.

Speaker 2: So I wish that I had like a, you know, great answer to your question yes or no. But I think it’s just we have to see where this court goes because based on its past performance, it is going to push this idea, this kind of attack on the integrity and constitutional basis of secular public education as far as it can go and do as much as it can that it thinks the public will put up with.

Dahlia Lithwick: It is interesting, Mark, that it was hard to listen to oral argument without sensing that there was like a sub debate going on about public education writ large. And it’s hard not to read this as a real kind of punch in the gut for public education. I want to give you a chance to talk about who the real victims are going to be here, because as you wrote in your piece today, the families who are seeking to have state funds so that they can put their children into these two specific sectarian schools, really tells you a lot about what these sectarian schools believe in and what their values are. And I guess I want to give you a chance, because both dissenters today flag who really suffers.

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Speaker 2: One of the schools, Bangor Christian, expels all students who identify as LGBTQ, who display any gender non-conforming behavior on or off campus. It requires teachers to affirm that they are born again Christians. It does not hire LGBTQ teachers. It teaches students to hate Muslims to refute the teachings of the Islamic religion. It teaches them that women are weak, that men serve as the head of the household.

Speaker 2: One of these other schools, it’s a similar thing. Temple Academy does not allow Jewish students, Muslim students, only specific Christian students. Students have to promise to glorify Jesus Christ and attend weekly religious services. If a student has same sex parents, they will be expelled or not allowed. Students are taught that gay people are deviants and perverted. Even janitors have to swear to be born again Christians.

Speaker 2: And just to put a point on it here, this is what Mainers will now be underwriting. Mainers will now be subsidizing this kind of overt discrimination on the basis of religion.

Speaker 2: And this is an irony of this case, is that the court claims that it is striking down discrimination on the basis of religion, but in doing so, it is going to require thousands of people, if not more, to fund this kind of discriminatory practice that is harmful, not just to religious minorities, to atheists, Muslims, Jews, but also, of course, to LGBTQ people and same sex parents and a whole host of individuals who these schools teach their students to hate.

Dahlia Lithwick: And last but not. Least I guess we have to note that this is another one of those Sonia Sotomayor dissents, Mark, where she pretty explicitly doesn’t just dissent from the opinion that Chief Justice Roberts writes, but she issues another warning both about how fast the court is changing the legal landscape. And also she warns about what’s to come.

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Speaker 2: Yeah, and this goes back to what I was saying earlier about the parade of horribles that Breyer mentions, which I think is spot on and really kind of leads the reader to question Roberts candor and his majority opinion. Like, you can’t just pretend that this is the end of the road for this campaign when there have been so many previous decisions where the majority has pretended like they’ve pushed things as far as they’re going to go and then just push further and further. And Sotomayor is saying quite correctly that the court has essentially repealed the establishment clause. The court has used the free exercise clause to overturn the separation of church and state that is embedded in the First Amendment to the Constitution.

Speaker 2: And the question then becomes what happens next? And I think we’ll get one answer soon when the court hands down the school prayer case this term, the Coach Kennedy case, where the court probably will grant administrators and teachers of public schools a right to engage in Christian prayer on campus during their job duties and coerce students into joining. Bringing us back to the times that we haven’t seen since the 1960s, when the court first outlawed school prayer and then moving out of the context of just schools. Like how far will the court go to tear down the very notion that church and state are not supposed to be entangled in this country? I don’t know the answer. I don’t think Justice Sotomayor knows the answer. But I fear that we will all find out. And the reality remains that Roberts is not in control of this court. And even if he reaches a point where he decides to draw the line, it no longer matters because Brett Kavanaugh and Amy Coney Barrett are in the driver’s seat now.

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Dahlia Lithwick: And let me just read part of this Sotomayor dissent, because I think she makes very expressly mark the argument you just made. She writes, quote, What a difference five years makes. In 2017, I feared that the court was leading us ellipses to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the court leads us to a place where separation of church and state becomes a constitutional violation. So what she’s essentially saying is, by definition, the establishment clause is per se violation of religious freedom. And that is exactly pointing us toward the Kennedy case that you are warning us about.

Speaker 2: Yeah. And I fear we’ll be right back here talking about it soon and saying that’s the next shoe to drop and then wondering what comes next down the road. And it’s not going to be pretty for those of us who believe that the American tradition is built around keeping matters of government and religion separate, and that doing so protects them both. Because to this Supreme Court, merely demanding neutrality toward religion constitutes unacceptable persecution of Christian believers. And that is a very dangerous idea whose time has apparently come.

Dahlia Lithwick: And a shout out to whoever it was on Twitter just now that suggested that hundreds of Muslim and Jewish academies should immediately move their operations to Maine, where they can get full funding. Mark Joseph Stern covers the courts and the law and the Supreme Court and this end of term for us here at Slate. Mark, thank you very much for your time. I know today was crazy.

Speaker 2: Thanks for having me on. And we’ll be back here soon enough.

Dahlia Lithwick: We will. And that is a wrap for this special bonus episode of Amicus for our Slate Plus members.

Dahlia Lithwick: Thank you so much for listening in and thank you for supporting the work we do at the magazine and on the show. Thank you for your letters and questions. You can always reach us at Amicus at Slate.com. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We’ll be back with another episode of Amicus later this week, likely on Saturday. Until then, take good care.